Mumbai: The Bombay High Court passed an interim order directing a fertility centre to preserve the frozen semen of a dead man, pending hearing of a petition filed by his mother.
The woman, who wants to use the fluid to continue the family’s lineage, approached the high court after the fertility centre refused to release the frozen semen as her son had asked the sperm carrying fluid to be discarded post death in consent forms, reported PTI.
The 21-year-old cancer patient, who had chosen to freeze his semen while undergoing chemotherapy, passed away on February 16.
A bench of Justice Manish Pitale noted that if the frozen semen of the dead man is discarded pending hearing of the mother’s petition, then it would become infructuous.
The high court set July 30 as the date for further hearing on the matter.
“In the meanwhile, as an interim direction, the fertility centre is directed to ensure safe-keeping and storage of the frozen sample of the dead, during pendency of the petition,” the court ordered.
The mother told the court that her son had been diagnosed with Ewing sarcoma — a rare form of bone and soft tissue cancer. Before starting chemotherapy, the oncologist had advised the family to freeze his semen as the aggressive treatment could affect his fertility.
The family was confident that the young man would recover, but they were unaware he had signed a consent form instructing the fertility centre to destroy his semen if he did not survive.
The son was the sole male heir in the family after the father and uncle died, the petition pointed out.
Following the youth’s death, the family requested the fertility centre to transfer the preserved semen to a facility in Gujarat for further medical advice. The centre refused, citing the man’s signed instructions, and said a legal directive was required to release the semen.
The mother then wrote to several government offices, but received no response. She then filed a petition in Bombay High Court.
Justice Pitale observed that the matter raises significant questions about how semen or gametes should be handled after the donor’s death under the Assisted Reproductive Technology (Regulation) Act, 2021, and its rules.
“This becomes particularly significant in the present case, for the reason that the deceased, being the son of the petitioner, was unmarried at the time of his death,” Justice Pitale noted.
Advocate Yashodeep Deshmukh, appearing for the Union of India, referred to a pre-ART Act judgement of the Delhi High Court, where frozen semen was handed over to the parents of a person. But unlike that case, the man here had clearly opted for disposal of his samples after his death, the advocate argued.
The court took note that that in the Delhi High Court judgement, directions had been issued to Ministry of Health & Family Welfare to consider framing appropriate laws or guidelines for posthumous reproduction.
Justice Deshmukh sought time to verify whether any such guideline exist under the ART Act.
